Putnam J.
drew up the opinion of the Court.
On the other hand, the plaintiff contends, that all the hay and fodder which were grown or produced on the farm, were specifically appropriated to be fed out and spent by the tenants thereon, and that the calves produced by his cows, which were taken by the defendant, were to be kept and continued on the [441]*441farm until the expiration of the lease or writing obligatory, to the end that the farm should be kept in good heart and condition.
The defendant claims a right on the part of the creditors of the tenants, to interfere with and break up this arrangement before the expiration of the term.
The hay and fodder which, according to the agreement, should have been fed out to the plaintiff’s stock and spent on the farm, has been taken and carried away, and a part of the stock also has been taken and carried away, which was to have remained upon the farm and been divided, after the expiration of the term, between the plaintiff and the tenants.
The plaintiff has suffered, as he avers, great damage from these wrongful acts of the defendant, and claims to recover as much money, in this special action upon his case, as would indemnify him, and would put him in as good a situation in point of property as he would have been in, if the hay and fodder had all been fed out and spent, and the stock had all remained on the farm until the end of the term, and had been • then divided.
Whatever technical objections may be raised in the case, it must be obvious to every practical farmer, that the provisions which are contained in the writing obligatory, are perfectly intelligible, as well as consistent with the rules of good husbandry. The case must be determined according to the true construction of the contract, taking into consideration the whole of it together. The first part of the indenture, for example, wherein the plaintiff demised, granted and to farm let the farm &c. for one year, would, without any explanation or qualification, seem to imply that the lessor granted to the lessees all the produce, for their own use, which could be gathered and taken during the term, subjecting the same to their own disposal, as well as to the attachments and levies of their creditors. But that part of the indenture is to be compared and construed with other parts, which are inconsistent with such an implication. It must be considered, for example, in connexion with the provision, “ that all the hay and fodder is to be fed out on the farm,” which is contained in a subsequent part of the same instrument. And upon a view of the whole ground we think, [442]*442that nothing ean be more clear, than that it was not the intent, either of the plaintiff or of the tenants, that the latter should have at their own disposal all the hay and fodder which should be made upon the farm, during the year. Taking the whole contract together, it is manifest, that the tenants had a limited right or interest in the hay and fodder, viz. only such a right or benefit as would result to them from having it given to the stock upon the farm, whereby their proportion of the produce of the dairy, and of the produce of the stock, would be in creased. At the end of the term the hay and fodder, in the contemplation of the parties, would be consumed and reduced to manure, which would belong to the farm.
The plaintiff, therefore, as the owner of the farm, had a much greater concern in the hay and fodder than the tenants had. So far as related to the produce of the dairy and of the stock, the plaintiff had an equal concern with the tenants. But beyond this the plaintiff, as the owner of the stock, had an interest in having it fed and sustained upon the hay and fodder produced from the farm ; and he had the sole interest in the manure which would arise from the consumption of the hay and fodder, as is before suggested. We have said that the manure would belong to the owner of the farm. Such is the law of New York. Middlebrook v. Corwen, 15 Wendell, 169. The tenant has no right to remove or dispose of it at the end of the term. In New Hampshire it would pass as incident to the land, to the grantee, unless there were a reservation made in the deed by the grantor. Kittredge v. Woods, 3 N. Hamp. R. 503. And in Maine the rule applies to and includes the manure which is made from the hay furnished by the tenant himself during the term. It all belongs to the farm. Chief Justice Mellen rests the decision on the ground of public policy. And the case of Daniels v. Pond, 21 Pick. 367, was decided upon the same grounds. The out-going tenant has no right to carry the manure off from the farm or appropriate it to his own use.
Nor is it a valid objection, that the hay and fodder were not in actual existence at the time when the covenant or contract for the appropriation of the same was made. The subject matter of the agreement existed potentially. Ayl. Civ. Law, [443]*443lib, 6, tit. 3; 2 Kent’s Comm. (3d ed.) 468, note. This principle is recognized in Fitzwilliam v. Parson of Arcay, 21 H. 6. 43, touching the grant of the parson of his tithe wool of the next year. Plowd. 13, (a). The case of Grantham v. Hawley, Hob. 131, is strongly illustrative of the point under consideration. There Sutton, seised of lands, granted the same to Sankee for twenty-one years, and did covenant and grant to and with Sankee, his executors and assigns, that it should be lawful for him to take and carry away, to his own use, such corn as should be growing upon the ground at the end of the term. The plaintiff purchased the reversion, and the defendant purchased of the executor of Sankee. And the court held, “ that the property and very right of the corn when it happened, was passed away ; for it was both a covenant and a grant; and though the lessor had it not actually in him, nor certain, yet he had it potentially ; for the land is the mother of all roots and fruits. Therefore, he that hath it may grant all fruits that may arise upon or after ; and the property shall pass as soon as the fruits are extant.”
So here, the contract under consideration had a prospective operation. It was intended to embrace the crop which should thereafter be produced, and to designate and appropriate to each party his proportion of the property. It purports to provide a compensation for the labor and services of the tenants in carrying on the farm, and not to grant the whole of the produce to them in consideration of the covenants on their part to be performed ; on the contrary, it shows clearly that the plaintiff intended to keep the staff in his own hands, as he had good right to do. He-intended to grant to the tenants a certain part of the produce of the farm and of the stock for their work, and to reserve all the rest to be specially applied for his own use.
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Putnam J.
drew up the opinion of the Court.
On the other hand, the plaintiff contends, that all the hay and fodder which were grown or produced on the farm, were specifically appropriated to be fed out and spent by the tenants thereon, and that the calves produced by his cows, which were taken by the defendant, were to be kept and continued on the [441]*441farm until the expiration of the lease or writing obligatory, to the end that the farm should be kept in good heart and condition.
The defendant claims a right on the part of the creditors of the tenants, to interfere with and break up this arrangement before the expiration of the term.
The hay and fodder which, according to the agreement, should have been fed out to the plaintiff’s stock and spent on the farm, has been taken and carried away, and a part of the stock also has been taken and carried away, which was to have remained upon the farm and been divided, after the expiration of the term, between the plaintiff and the tenants.
The plaintiff has suffered, as he avers, great damage from these wrongful acts of the defendant, and claims to recover as much money, in this special action upon his case, as would indemnify him, and would put him in as good a situation in point of property as he would have been in, if the hay and fodder had all been fed out and spent, and the stock had all remained on the farm until the end of the term, and had been • then divided.
Whatever technical objections may be raised in the case, it must be obvious to every practical farmer, that the provisions which are contained in the writing obligatory, are perfectly intelligible, as well as consistent with the rules of good husbandry. The case must be determined according to the true construction of the contract, taking into consideration the whole of it together. The first part of the indenture, for example, wherein the plaintiff demised, granted and to farm let the farm &c. for one year, would, without any explanation or qualification, seem to imply that the lessor granted to the lessees all the produce, for their own use, which could be gathered and taken during the term, subjecting the same to their own disposal, as well as to the attachments and levies of their creditors. But that part of the indenture is to be compared and construed with other parts, which are inconsistent with such an implication. It must be considered, for example, in connexion with the provision, “ that all the hay and fodder is to be fed out on the farm,” which is contained in a subsequent part of the same instrument. And upon a view of the whole ground we think, [442]*442that nothing ean be more clear, than that it was not the intent, either of the plaintiff or of the tenants, that the latter should have at their own disposal all the hay and fodder which should be made upon the farm, during the year. Taking the whole contract together, it is manifest, that the tenants had a limited right or interest in the hay and fodder, viz. only such a right or benefit as would result to them from having it given to the stock upon the farm, whereby their proportion of the produce of the dairy, and of the produce of the stock, would be in creased. At the end of the term the hay and fodder, in the contemplation of the parties, would be consumed and reduced to manure, which would belong to the farm.
The plaintiff, therefore, as the owner of the farm, had a much greater concern in the hay and fodder than the tenants had. So far as related to the produce of the dairy and of the stock, the plaintiff had an equal concern with the tenants. But beyond this the plaintiff, as the owner of the stock, had an interest in having it fed and sustained upon the hay and fodder produced from the farm ; and he had the sole interest in the manure which would arise from the consumption of the hay and fodder, as is before suggested. We have said that the manure would belong to the owner of the farm. Such is the law of New York. Middlebrook v. Corwen, 15 Wendell, 169. The tenant has no right to remove or dispose of it at the end of the term. In New Hampshire it would pass as incident to the land, to the grantee, unless there were a reservation made in the deed by the grantor. Kittredge v. Woods, 3 N. Hamp. R. 503. And in Maine the rule applies to and includes the manure which is made from the hay furnished by the tenant himself during the term. It all belongs to the farm. Chief Justice Mellen rests the decision on the ground of public policy. And the case of Daniels v. Pond, 21 Pick. 367, was decided upon the same grounds. The out-going tenant has no right to carry the manure off from the farm or appropriate it to his own use.
Nor is it a valid objection, that the hay and fodder were not in actual existence at the time when the covenant or contract for the appropriation of the same was made. The subject matter of the agreement existed potentially. Ayl. Civ. Law, [443]*443lib, 6, tit. 3; 2 Kent’s Comm. (3d ed.) 468, note. This principle is recognized in Fitzwilliam v. Parson of Arcay, 21 H. 6. 43, touching the grant of the parson of his tithe wool of the next year. Plowd. 13, (a). The case of Grantham v. Hawley, Hob. 131, is strongly illustrative of the point under consideration. There Sutton, seised of lands, granted the same to Sankee for twenty-one years, and did covenant and grant to and with Sankee, his executors and assigns, that it should be lawful for him to take and carry away, to his own use, such corn as should be growing upon the ground at the end of the term. The plaintiff purchased the reversion, and the defendant purchased of the executor of Sankee. And the court held, “ that the property and very right of the corn when it happened, was passed away ; for it was both a covenant and a grant; and though the lessor had it not actually in him, nor certain, yet he had it potentially ; for the land is the mother of all roots and fruits. Therefore, he that hath it may grant all fruits that may arise upon or after ; and the property shall pass as soon as the fruits are extant.”
So here, the contract under consideration had a prospective operation. It was intended to embrace the crop which should thereafter be produced, and to designate and appropriate to each party his proportion of the property. It purports to provide a compensation for the labor and services of the tenants in carrying on the farm, and not to grant the whole of the produce to them in consideration of the covenants on their part to be performed ; on the contrary, it shows clearly that the plaintiff intended to keep the staff in his own hands, as he had good right to do. He-intended to grant to the tenants a certain part of the produce of the farm and of the stock for their work, and to reserve all the rest to be specially applied for his own use. The contract cannot be understood as giving a right to the tenants to sell the hay from the farm for their own use. It cannot be supposed, that it was intended to be subjected to their debts, and carried away from the farm. Such a construction would be as unreasonable as it would be to suppose that the tenants were authorized to sell the land itself. The part of the produce which was granted by the plaintiff was in the nature of wages for services, so that all the produce, except that part [444]*444which was granted to the tenants, became and remained the property of the plaintiff.
It has been held in New York, Foote v. Colvin, 3 Johns R. 216, that where the owner of land agrees with another, that he may sow the land on shares, they may maintain a joint action of trespass against a third person who enters and carries away the crop. If that be so, and if it be true that the plaintiff and the tenants had a joint interest, and might have maintained a joint action for the wrong complained of in this action, it is now too late to make any objection on that account; it should have been pleaded in abatement; Sedgworth v. Overend, 7 T. R. 280; and the plaintiff may recover so far as his interest has been prejudiced.
The provision in the contract requiring the hay to be spent upon the farm, is conformable to rules of good husbandry in England, and would be implied from the relation between landlord and tenant, if it were not expressed. “Every tenant,” (to use the words of one of the most eminent and practical English judges,) “every tenant, where there is no particular agreement dispensing with that engagement, is bound to cultivate his farm in a husbandlike manner, and to consume the produce on it. This is an engagement which arises out of the letting, and which the tenant cannot dispense with, unless by special agreement.” Opinion of Buller J., cited by Gibbs C. J. in Brown v. Crump, 1 Marshall, 567. And so in the civil law, Inst. lib. 2, tit. 1, § 38, the usufructuary is bound to act in every respect as a good husbandman. “ Recte enim colere, et quasi bonus paterfamilias uti, debel.”
In Massachusetts the rules of good husbandry require, that so much, at the least, of the produce should be spent upon the farm, as would be sufficient to feed all the stock properly kept thereon ; for the manure resulting from the consumption of at least so much of the produce, would be requisite to keep the farm in good order or condition of fertility. We speak now of the general course of farming. There are many exceptions from the general rule. Where other and equivalent sources of manure can be economically obtained, such, for example, as kelp and sea-weed, muscle beds and other marine substances, manure from livery stables, &c. a part of the hay may well be [445]*445sold But, as a general rule, it may be considered, that the hay or other produce, at least to the extent of sustaining the stock, should be spent upon the farm, as the means of preserving and continuing its capacity of production.
The case differs essentially from Butterfield v. Baker, 5 Pick. 522, where a quantity of corn, which was produced on a farm, was taken by the sheriff as the property of the tenant. No question arose in that case, whether or not the corn might be sold by the tenant and carried off from the farm consistently with the rules of good husbandry ; but whether the corn should be considered as conveyed by the tenant to the lessor, or was liable to the attachment of the creditors of the lessee, before any delivery of the corn. In the lease the lessor reserved a right to enter and take the produce, on account of rent; but he had not availed himself of the right reserved. He had not entered and seized the corn, and there had been no delivery of it to the landlord. In truth, there was no rent due from the tenant when the corn was attached. Under those circumstances, it was held, that the attachment should prevail against the claim of the lessor. The corn was a part of the produce which belonged to the tenant.
But according to the true construction of the contract under consideration, the property in the hay never passed to the tenants ; but, on the contrary, the hay was reserved and appropriated to be spent on the farm. So it seems to us to be very clear, that the sheriff had no right to take it away from the farm in virtue of any attachments or executions against the tenants.
And the claim of the plaintiff to recover damage for the calves which the defendant has taken, is also well maintained. These calves, with other stock, were to be kept on the farm until the expiration of the lease. No division of the stock was to be made until that period. The plaintiff, as landlord, had a right to the benefit which would arise from the keeping of those calves on the farm until the end of the term. The tenants would have had no more right to take away the calves from the farm before the expiration of the lease, than a partner would have to take away a part of the stock invested on the joint account for a time to come and unexpired. And the creditor of [446]*446the tenants would have no more right to take away the proper ty 80 appropriated, than a creditor of one partner would have take the partnership property before and without paying or satisfying what would be due from the debtor partner to the concern.
The contract under consideration was bottomed essentially on the rules of good husbandry ; for the hard soil of New England must be replenished or it will cease to be fruitful. It is beneficial to the public as well as to the individuals concerned ; to the public, inasmuch as it has a tendency to promote industry and agriculture ; to the landlord, because it enables him to receive a reasonable income without impoverishing his lands ; and to the tenant or laboring farmer, because, however poor he may be, it enables him to apply his skill and labor to obtain a comfortable support. It is also an honest contract, *md one that has no tendency to prejudice the claims of creditors. If it were promulgated from the house top, it would hold out no false credit; for, so far as it relates to the tenants, it purports only to make a proper compensation for services to be performed.
The plaintiff is therefore entitled to recover for the injury which he has sustained in' consequence of the unlawful interference of the defendant, by means whereof the performance of the contract has been prevented.
The cause is to be committed to an auditor to ascertain and report the damages, the measure of which should be such a sum as would put the plaintiff in as good a situation as to property, as he would have been in if the wrongful acts, whereof the plaintiff complains, had not been committed by the defendant.
Dewey J. did not sit in the cause.